JUDGMENT
Rajes Kumar, J.
1. The present appeal is being directed against the order dated 31.5.2001 passed by the District Judge, Kanpur Dehat on the application under Order 39 Rules 1 and 2 of C.P.C. in Original Suit No. 1 of 2000, by which, an ex-parte injunction order dated 18.11.2000 has been confirmed and made absolute, till the disposal of Suit. The interim injunction granted on 18.11.2000 was in terms of prayer made in application, i.e., defendant, their servants, agents, Stockiest, Retailer, Distributors and representatives were restrained from manufacturing, selling, offering for sale, stocking, advertising directly or indirectly dealing in washing soaps and detergent powder under the impugned Trade Mark “Pooja No. 1 Ghari” or any other Trade Mark/Marks under the artistic plastic pouches Annexed as Annexure “B” or using any Trade Mark/Marks/or plastic Pouches as Annexed as Annexure-1 to the plaint. The defendants were further restrained from doing any other things as is likely to lead of passing off its good and business as the goods and business of the plaintiff.
2. The appellant is Proprietorship concern and the appellant is doing its business of manufacturing and marketing of Detergent Powder and Detergent Cake in the name of “Pooja No. 1 Ghari” at Katni in Madhya Pradesh. M/s. Kanpur Trading Company, plaintiff-respondent filed a Suit before the District Judge, Kanpur Dehat claiming relief of injunction against the defendant from manufacturing, selling etc., of washing soap and Detergent Powder & for rendition of accounts and for other consequential relief on the ground that the word “Ghari” is their registered trade mark and the appellant is using the word “Pooja No. 1 Ghari” in order to deceive the customer their good will of the name “Ghari” and as such, there was a infringement of trade mark and copy right. It has also been alleged that the pouches of the plaintiff-respondent and appellant-defendant were also similar. Annexure-A at page No. 27 is the plaintiffs pouch and at page 28 Annexure-B is the defendant’s pouch of the affidavit filed alongwith the present appeal. The learned District Judge in its impugned order held as follows:-
“As already pointed out the head of the trade mark is “Ghari”. It the defendant No. 2 made certain addition or variation on the other part of deception or confusion. In the instant case, we are concerned with the sale of detergent powder and detergent cakes both in the urban areas and country side. These soaps are sold to the customer is not supposed to go with scanner or microscope to discern the variations. It is likelihood of deception or confusion which is material. A visual inspection of the offending label/trade mark clearly points out that it is similar to that of the plaintiff. The conclusion is in escapable that the use of trade mark by the defendant is apt to cause confusion. A customer does not keep in mind the actual design. Colour or other things of a particular design. If these two labels are put across, the man of a street bound to confuse. He will not be able to discriminate between the two labels and proprietors thereof.
3. Therefore, in my view applying the principles laid down in case laws, referred above, the plaintiff have injunction. The balance of convenience is also in favour of plaintiffs, as the defendants have only recently adopted the infringement trade mark “Pooja No. 1 Ghari” for their products namely “Detergent Powder” alongwith a deceptively similar plastic pouch, annexed as Annexure-B to the plaint, which is a blatant infringement of the common law and statutory rights of the plaintiffs. Further more, the injury which could be occasioned by the illegal trade activities of the defendants to the plaintiffs reputation and good will would been enormous and incapable of an accurate assessment in monetary terms.”
4. Heard Shri Vikram Nath learned Counsel for the appellant and Shri Ashok Khare, learned Senior Advocate assisted by Shri J.G. Upadhayay.
5. The contention of learned Counsel for the appellant is that the name of Detergent Powder of the appellant is “Pooja No. 1 Ghari” while the name of plaintiff-respondent is “Ghari”. He submitted that the design of pouches are also different and therefore, cannot be said that the name of appellant product and design of pouches are identical and same to the plaintiff-respondent’s name and design. He submitted that though, there is no dispute that the plaintiff-respondent is manufacturing Detergent Powder in the name of “Ghari” since long much prior to the appellant’s business but since there is no similarity in the name and design, the appellant has not committed any infringement of trade mark and copy right. He submitted that the “Ghari” trade mark and design of pouches and label at page 27 is not registered under the Trade Mark Merchandise and Marks Act and under Copyright Act. Therefore, the plaintiff do not have absolute right under the Trade Mark Merchandise Act and Copy Rights Act to use “Ghari” trade mark. In reply, Counsel for the respondent submitted that just to deceive the customer, the appellant is selling their products in the name “Pooja No. 1 Ghari”. He submitted that the design of Pouches and label in look in similar and placement of various words are also almost similar. He further submitted that in respect of Detergent Cake and Detergent Powder the plaintiff-respondent has got Registration Certificate under the Trade Mark and Merchandise Act in respect of Trade Mark “Ghari” on 11.6.2003, the copy of the said Certificate has been produced. He submitted that the Certificate was issued earlier also which was subsequently renewed but due to some reason, it was cancelled but now the same has again been issued. He submitted that in any view of the matter, the plaintiff-respondent selling his product “Detergent Powder and Detergent Cake” under the trade mark of “Ghari” since the last several years much before the start of business by the appellant-defendant and therefore, has a exclusive right to use “Ghari” trade mark. He submitted that the title “Pooja No. 1 Ghari” is only to deceive the customer. The main Symbol point of attraction and point of identification is “Ghari” which is clear from the pouches filed at page 27 and 28. In the circumstances he submitted that the appeal is liable to be dismissed and the order of the Court below be up held.
6. In the case of Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., 2001 PTC 300, the Hon’ble Supreme Court has observed as follows:-
“Under Section 28 of the Trade and Merchandise Marks Act on the registration of a trade mark in Part-A or B of the register, a registered proprietor gets an exclusive right to use the trade mark in relation to the goods in respect of which trademark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by the Act. In the case of unregistered trade mark, Section 27(1) provides that no person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark. Sub Section (2) of Section 27 provides that the Act shall not be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. In other words in the case of unregistered trade marks a passing off action is maintainable. The passing off action depends upon the principle that nobody has a right to represent his goods as the goods of some body. In other words a man is not to sell his goods or services under the pretence that they are those of another person. As per Lord Diplock in Erwen Warhnink BV v. J. Townend & Sons, 1979 (2) AER 927, the modern tort of passing off has five elements i.e. (1) a mis-representation, (2) made by a trader in the course of trade, (3) to prospective customers of his or ultimate consumers of goods of services supplied by him, (4) which is calculated to injure the business or good will of another trader (in the sense that this is a reasonably foreseeable consequence), and (5) which causes actual damage to a business or goodwill of the trader by whom the action is brought or (in a quia timer action) will probably do so.
While examining such cases in India, what has to be kept in mind is the purchaser of such goods in India who may have absolute no knowledge of English language or of the language in which the trade mark in written and to whom different words with slight difference in spellings may sound phonetical the same. While dealing with cases relating to passing off, one of the important tests which has to be applied in each case is whether the mis-representation made by the defendant is of such a nature as is likely to cause an ordinary consumer to confuse one product for another due to similarity of marks and other surrounding factors. What is likely to cause confusion would vary from case to case.
Broadly stated in an action for passing off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following factors to be considered:
a. The nature of the marks i.e. whether the marks are word marks or label marks or composite marks i.e. both words and label works.
b. The degree of resembleness between the marks, phonetically similar and
hence similar in idea.
c. The nature of the goods in respect of which they are used as trade marks.
d. The similarity in the nature, character and performance of the goods of the rival traders.
e. The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods.
f. The mode of purchasing the goods or placing orders for the goods, and g. Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks.
Weightage to be given to each of the aforesaid factors depends upon facts of each case and the same weightage cannot be given to each factor in every case.”
7. In the Case of F. Hoffimann-La Roche and Co. Ltd., v. Geoffrey Manners and Co. Pvt. Ltd., AIR 1970 SC 2062 (V 57 C 439), the Hon’ble Supreme Court observed as follows:-
“In Parker Knoll Ltd. v. Knoll International Ltd., 1862 RPC 265 at Page 274, Lord Denning explained the words “to deceive” and the phrase “to cause confusion” as follows:-
“Secondly, to deceive is one thing. To ’cause confusion’ is another. The difference is this: When you deceive a man, you tell him a lie. You must a false representation to him and thereby cause him to believe a thing to be true which is false. You may not do it knowingly, or intentionally, but still you do it, and so you deceive him. But you may cause confusion without telling him a without making any false representation to him. You may indeed tell him the truth, the whole truth and nothing but the truth, but still you may cause confusion in his mind, not by any fault of yours, but because he has not the knowledge or ability to distinguish it from the other pieces of truth known to him or because he may not even take the trouble to do so. The tests for comparison of the two word marks were formulated by Lord Parker in Pianotist Co., Ltd.,’s application, (1906) 23 RPC 774 at page 777 as follows:-
“You must take the two words. You must judge of them, both by their look and by their sound. You must consider the goods to which they are to be applied. You must consider the nature and kind of customer who would be likely to buy those goods. In fact, you must consider all the surrounding circumstances; and you must, further consider what is likely to happen if each of those trademarks is used in a normal way as a trade mark for the goods of the respective owners of the marks. If, considering all those circumstances, you come to the conclusion that there will be a confusion -that is to say, not necessarily that one man will be injured and the other will gain illicit benefit, but that there will be a confusion in the mind of the public which will lead to confusion in the goods- then you may refuse the registration or rather you must refuse the registration in that case.”
8. It is necessary to apply both the visual and phonetic tests. In Aristoc Ltd. v. Rysta Ltd., 1945 RPC 65 at p. 72, the House of Lords was considering the resemblance between the two words “Aristoc” and “Rysta”. The view taken was that considering the way the words were pronounced in English, the one was likely to be mistaken for the other. Viscount Maugham cited the following passage of Lord Justice Luxmoore in the Court of Appeal, which passage, he said, he completely accepted as the correct exposition of the law:-
“The answer to the question whether the sound of one word resembles too nearly the sound of another so as to bring the former within the limits of Section 12 of the Trade Marks Act, 1938, must nearly always depend on first impression, for obviously a per is familiar with the words will neither be deceive nor confused. It is the person who only knows the one word and has perhaps an imperfect recollection of it who is likely to be deceive or confused. Little assistance, therefore, is to be obtained from a meticulous comparison of the two words, letter by letter and syllable by syllable, pronounced with the clarity to be expected from a teacher of elocution. The Court must be careful to make allowance for imperfect recollection and the effect of careless pronunciation and speech on the part not only of the person seeking to buy under the trade description, but also of the shop assistant ministering to that person’s wants.”
9. It is also important that the marks must be compared as whole. It is not right to take a portion of the word and say that because that portion of the word differs from the corresponding portion of the word in the other case there is no sufficient similarity to cause confusion. The true test is whether the totality of the proposed trade mark is such that it is likely to cause deception or confusion or mistake in the minds of persons accustomed to the existing trade mark. Thus in Lavroma case, Tokalon Ltd. v. Davidson and Co., 32 RPC 133 at p. 136, Lord Johnston said:
“…….we are not bound to sear the words as we would in a question of comparatio literarum. It is not a matter for microscopic inspection, but to be taken from the general and even casual point of view of a customer walking into a shop.”
10. In the case of B.K. Engineering Company, Delhi v. U.B.H.I. Enterprises (Regd.) Ludhiana and Anr., AIR 1985 Delhi 210, the Division Bench of Delhi High Court observed as follows:-
Para-11. “The passing off action arose in the ninteenth century and depends upon the simple principle that “no body has any right to represent his goods as the goods of somebody else” Reddaway v. Banham, (1896) AC 199 at 204 per Lord Halsbury. In other words, a man is not to sell his goods or his services under the pretence that they are those of another man. Perry v. Truefiti, (1842) 40 ER 749 per Lord Langdale M.R. This is the classic form of passing off. Now this tort has been extended in the leading case of Erven Warnink v. Townend & Sons, (1979) 2 All ER 927. Lord Diplock said that “what the law protects by a passing off action is a trader’s property in his business or goodwill (p.932). Following Lord Parker in A.G. Spalding v. A.W. Gamage Ltd., (1915) 32 RPC 273 he said that the right the invasion of which is the subject of passing off actions is “the property in the business or goodwill likely to be injured by the misrepresentation.” The false suggestion by the defendant that his business is connected with the plaintiffs would damage the reputation and thus the goodwill of the plaintiffs business.”
Para-12 “The modern tort of passing off has five elements: (1) a misrepresentation, (2) made by a trader in the course of trade, (3) to prospective customers of his or ultimate consumers of goods or services supplied by him, (4) which is calculated to injure the business or goodwill of another trader (in the sense that this is a reasonably foreseeable consequence) and (5) which causes actual damage to a business or goodwill of the trader by whom the action is brought Erwen Warnink (1979-2 All ER 927) (supra) at 932-933 per Lord Diplock.
Para-13 “The law on this matter is designed to protect traders against that form of unfair competition which consists in acquiring for oneself, by means of false and misleading devices, the benefit of the reputation already achieved by a rival trader. The defendant seeks to acquire this benefit by passing off his goods as and for the goods of the plaintiff.
Para-23 “Passing off may take many form. With the changes in the technology of the trade infinite varieties of passing off will spring up. Radio, television and newspaper advertising have added a new dimension to this sort. The crux of the matter is not the intention of the defendant in taking a certain name, but the probable effect of such action on the minds of the public. However, innocent may be his intentions, he will be restrained from trading under name so much like that under which the plaintiff who was first in the field trades that the public, are very likely to be deceived into systematic, and not merely occasional, confusion. Hendriks v. Monta gu., (1881) 17 Ch. D. 638; Society of Motor Manufacturers v. Motor Manufacturers’ Ins. Co., (1925) Ch. 675, this is the essence of passing off.”
Para-26 “The true basis of the action is that the passing off injures the right of property in the plaintiff, that right of property being his right to the goodwill of his business Cadbury (1981-1 All ER 213) (supra) at p. 221. The plaintiff is entitled to protect the good will in his business. Equity will intervene to protect the goodwill. Injunction is an equitable remedy. This doctrine now has the blessing of the House of Lords in Erwen Warnink v. Towned (1979-2 All ER 927) (supra) and of the Privy Council in Cadbury Schweppes v. Pub. Squash Co. (supra) and Star Industrial Co. Ltd. v. Yap Kwee Kor, (1976) FSR 256. The right the invasion of which is the subject of passing off actions is said to be the property of business or goodwill likely to be injured by mis-representation. “Goodwill is the attractive force which brings in custom: And if one steals goodwill one steals custom. Trego v. Hunt, (1896) AC 7 per Lord Macnaghten Romer L.J. pointed out in Samuelson v. Producers Distributing Co. Ltd., (1932) 1 Ch. 201 to 210 that injunctions restraining “classic” passing off were instances of a much wider principle, namely, that equity will always restrain irreparable injury to the plaintiffs property.
What the Judge has to decide in a passing off action is whether the public at large is likely to be deceived. What would be the effect of the representation upon the prospective purchaser—-Brava Wine Co. Ltd., (1959) 3 All ER 800 (Champagne case), Vine Products Ltd. v. Mackenzie & Co. Ltd., (1969) RPC 1 (Sheery case), John Walker & Sons Ltd. v. Henry Ost & Co., (1970) 2 All ER 106) (Scotch Whisky case). In Bollinger’s case Dankwerts, J. at p. 805 said that law in this respect has been concerned with unfair competition between traders rather than with the deception of the public which may be caused by the defendant’s conduct. “The right of action known as a passing off act on is not an action brought by the member of the public who is deceived but the trader whose trade is likely to suffer from the deception practiced on the public but who is not himself deceived at all. “Wine cases were approved by the House of Lords in Warnink v. Towned (1979-2 All ER 927) (supra). Privy Council in Cadbury (1981-1 All ER 213) (supra) referred to American and Australian decisions and propounded the doctrine of unfair competition, as we have seen. From the classic form to the modern tort of passing off the law has moved on. I would use of the law the words Galileo used of the earth: “But it does move.” The law has changed because of the development of new business techniques and new trading devices. One country alone may start the process. Others may follow. At first a trickle, then a stream, last a flood. We should not be left behind on the bank.” We must take the current when it serves, or lose our ventures”: Julius Caesar, Act IV, S.C. III.”
Para-42 “The question at this stage is only of a temporary injunction. For that purpose the mis-representation complained of is certainly of such a nature as to give rise to a strong probability of confusion is the minds of the purchasing public. I refrain from amplifying this point so as not to prejudice any question which may arise as to damages or permanent injunction. It is sufficient to say that the mis-representation being prima facie established, being in its nature calculated to deceive, the plaintiffs are entitled to a temporary injunction. The gist of the plaintiffs complaint is that their trade name, their house mark are being invaded. On the invasion of their right to property in the goodwill and business reputation they found their claim. In my opinion, nothing in arguments has been shown to me to displace the plaintiffs’ prima facie right to relief.”
Para-45 “It is not necessary to prove that any members of the public were deceived. As action will lie where it is to be expected that due course the act of the defendant would be calculated to cause confusion in the minds of the purchasing Publick Draper v. Trist, (1939) All ER. 513 (C.A.).
Restatement of the Law: A Summary.”
Para-46 “Lord Parker in A.G. Spalding, (1915) 32 R.P,C. 273 (supra) showed that in a passing off action the right in question is a right to property. A plaintiff complains of the invasion of this right to property. The property is the business or goodwill likely to be injured by mis-representation. If the mark is distinctive of the plaintiffs goods in the eyes of the public or a class of the public any mis-representation is likely to deceive the ultimate customer. Property is not in the mark; name or get up improperly used by the defendant. But the property is in business or goodwill likely to be injured by mis-representation. The foundation of the modern tort of passing off is the infringement of the right to property. A plaintiff can say that the defendant is infringing his name which is distinctive of his goods. A mistake of that name is hardly consistent with fair or honest trading, as Lord Parker said. The same emphasis was laid by Lord Diplock when he spoke of commercial honesty.” Warnink v. Towned (1979-2 All ER 927) at p. 933 (supra) and Lord Fraser of business morality.” (at p.944).”
11. In the case of Sahana Soap Works and Ors. v. Kanpur Trading Company Pvt. Ltd. and Ors., 2002 (25) PTC 369 (All), the similar situation arose, in which, the appellant M/s. Sahana Soap Works was manufacturing Detergent Soap in the name of new Ghari. Admittedly the business of appellant was started much after the business of the respondent. The trial court has passed injunction order against which the appeal was filed before this Hon’ble Court. The court rejected the appeal and held that the respondent had made out prima facie case to prove that the plaintiff respondents were the prior user and coupled with use in the trade mark by the defendant-appellant of the word ‘New’ which has identically been done in very small letters, so as to be missed by all, but an abnormally careful customer would indicate that the appellants have tried to cash in on the goodwill of the plaintiff-respondents. However, the court has directed the trial court to dispose of the suit expeditiously.
12. In the case of Laxmikant v. Patel v. Chetanbhat Shah and Anr., 2002 (24) PTC 1 (SC), Hon’ble Supreme observed as follows:-
“The principle issue determinative of the grant of temporary injunction would be whether the business of the plaintiff run in a trade name of which “Muktajivan’s is a part had come into existence prior to commencement of its user by the defendants and whether it had acquired a goodwill creating a property in the plaintiff so as to restrain the use of word Muktajivan in the business name of a similar trade by a competitor i.e. the defendants.” Para-8 “It is common the trade and business for a trader or a business to adopt a name and/or mark under which he would carry on his trade or business. According to a Kerly (Law of Trade Marks and Trade Names, Twelfth Edition, para 16.49), the ‘name under which a business traders will almost always be a trade mark (or if the business provides services, a service mark, or both). Independently of questions of trade or service mark, however, the name of a business (a trading business or any other) will normally have attached to it a goodwill that the courts will protect. An action for passing off will then lie wherever the defendant company’s name, or its intended name, is calculated to deceive and so to divert business from the plaintiff, or to occasion a confusion between the two businesses. If this is not made out there is no case. The ground is not to be limited to the date of the proceedings; the court will have regard to the way in which the business may be carried on in the future, and to its not being carried on precisely as carried on at the date of the proceedings. Where there is probability of confusion in business, an injunction will be granted even though the defendants adopted the name innocently.”
Para-12 “The three elements of passing off action are the reputation of goods, possibility of deception and likelihood of damage to the plaintiff. In our opinion, the same principle, which applies to trade mark, is applicable to trade name.”
Para-13 “In an action for passing off it is usual, rather essential, to seek an injunction temporary or ad-interim. The principles for the grant of such injunction are the same as in the case of any other action against injury complained of. The plaintiff must prove a prima facie case, availability of balance of convenience in his favour and his suffering an irreparable injury in the absence of grant of injunction. According to Kerly (ibid, para 16, 16) passing off case are often cases of deliberate and intentional mis-representation, but it is well settled that fraud is not a necessary element of the right of action, and the absence of an intention to deceive is not a defence though proof of fraudulent intention may materially assist a plaintiff in establishing probability of deception. Christopher Wadlow in Law of passing off (1995 Edition, at 0.3.06) states that the plaintiff does not have to prove actual damage in order to succeed in an action for passing off. Likelihood of damage is sufficient. The same learned author states that the defendant’s state of mind is wholly irrelevant to the existence of the cause of action for passing off (ibid, para 4.20 and 7.15). As to how the injunction granted by the Court would shape depends on the facts and circumstances of each case. Where a defendant has initiated or adopted the plaintiffs distinctive trade mark or business name, the order may be an absolute injunction that he would not use or carry on business under that name, (Kerly, ibid, para 16.97).”
Para-17 “We are conscious of the law that this Court would not ordinarily interfere with the exercise of discretion in the matter of grant of temporary injunction by the High Court and the trial court and substitute its own discretion therefore except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the order of the Court under scrutiny ignores the settled principles of law regulating grant or refusal of interlocutory injunction. An appeal against exercise of discretion is said to be an appeal on principal. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court valid have taken a different view may not justify interference with the trial court’s exercise of discretion (see Wander Ltd. v. Antox India Pvt. Ltd., 1990 SCC 727 (supra) and N.R. Dongre v. Whirlpool Corporation and Anr., (1996) 5 SCC 714.)”
13. In the case of N.R. Dongre and Ors. v. Whirlpool Corporation and Anr., 1996 (5) Supreme Court Cases 714, the Hon’ble Apex Court has held as follows:
Para-17 “The question now is whether the exercise of discretion by the trial court in favour of the plaintiffs to grant the interlocutory injunction is in accordance with the settled principles of law regulating grant of interlocutory injunctions or not? We think it is so.”
Para 18: “Injunction is a relief inequity and is based on equitable principles. On the above concurrent findings, the weight of equity at this stage is in favour of the plaintiffs and against the defendants. It has also to be borne in mind that a mark in the form of a word which is not a derivative of the produce, points to be source of the product. The mark/name ‘Whirlpool’ is associated for long, much prior to the defendants’ application in 1986 with the Whirlpool Corporation, Plaintiff. In view of the prior user of the mark by plaintiff I and its trans-border reputation extending to India, the trade mark’ Whirlpool’ gives an indication of the origin of the goods as emanating from or relating to the Whirlpool Corporation, Plaintiff I. The High Court has recorded its satisfaction that use of the’ Whirlpool’ mark by the defendants indicates prima facie an intention to pass off the defendants washing machines as those of the plaintiffs or at least the likelihood of the buyers being confused or misled into that belief.”
14. In the present case also the plaintiff-respondent was able to prove a prima facie case that they were prior user of trade mark ‘Ghari’ and ‘Ghari’ is the main symbol point of attraction and point of identification, by which the commodity is known and marketed and it appears that to deceive the customer, the word ‘Pooja No. 1’ has been added with main prominent word ‘Ghari’ and in label and other pamphlets almost similar design has also been adopted to confuse the customer and unless the customer very minutely and closely examine the label and product. In the circumstances, I do not find any reason to interfere with the order passed by the trial court. With regard to the submission of learned Counsel for the respondent; that in respect of ‘Ghari’, the registration under the Trade and Merchandise Marks Act has now been issued, since the copy of said Registration Certificate has not been filed before the trial court and the trial court has not applied its mind no opinion can be expressed at this stage. However, the respondent may be the said Certificate in support of its case. On the request of the learned Counsel for the defendant-appellant and in order to ensure that the plaintiffs having obtained interim injunction in their favour do not want hearing the suit. Therefore, is directed that the suit will be disposed of by the trial court expeditiously without granting undue delay or undue advantage by putting long adjournment to the plaintiff. Further any observation in this order, shall not effect the final decision in the Suit which may be decided independently on the consideration of evidences available on record.
15. With the aforesaid observations, the appeal is dismissed.
